Kanacki (Migration) - [2020] AATA 5767

Kanacki (Migration) [2020] AATA 5767 (28 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Dr Zlatko Kanacki
CASE NUMBER:  1810348
HOME AFFAIRS REFERENCE(S):          CLF2016/52227
MEMBER:Justin Owen
DATE:28 September 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.
Statement made on 28 September 2020 at 3:33pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) – no attempts were made to obtain community services– applicant is not a ‘remaining relative’ – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65,351
Migration Regulations 1994, rr 1.03, 1.15, Schedule 2, cls 835.212, 836.221

CASES
Hon Anh Vuong v MIAC [2013] FCCA 274
Lam v MIBP [2013] FCCA 1263
Nguyen v MIBP [2015] FCCA 3254
Perera v MIMIA [2005] FCA 1120
Sefesi v MIBP [2016] FCCA 975
Xiang v MIMIA [2004] FCAFC 64

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 March 2018 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 24 August 2016. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B of Schedule 1 to the Migration Regulations 1994 (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.836.221.
The delegate refused to grant the visas on the basis that cl.836.221 was not met.
The applicant appeared before the Tribunal on 13 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Svetlana Vokurka and Mr Mick Milivoj Vujanov. The Tribunal hearing was conducted with the assistance of an interpreter in the Croatian and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Whether the applicant is a carer
Clause 836.221 requires that at the time of decision, the applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer’ is defined in r.1.15AA of the Regulations which is set out in the attachment to this Decision.
Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of r.1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the applicant’s mother. The Tribunal is satisfied on the evidence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kanacki (Migration)

Details

AGLC: Kanacki (Migration) [2020] AATA 5767
Case: [2020] AATA 5767
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the application of Mr Kanacki, who sought review of a decision not to grant him an Other Family (Residence) (Class BU) visa. The primary issue before the Tribunal was whether Mr Kanacki met the criteria to be considered a "carer" of his Australian resident mother, as defined by regulation 1.15AA of the Migration Regulations 1994.

The Tribunal was required to determine if Mr Kanacki satisfied the requirements of regulation 1.15AA(1), specifically whether he was a relative of the Australian resident, and if a valid Carer Visa Assessment Certificate met the stipulated conditions. These conditions included the existence of a medical condition in the Australian relative or a family unit member, causing specific impairments, with a defined impairment rating, and a continuing need for direct assistance for at least two years. The Tribunal also had to consider whether the certificate was issued by an authorised health provider and whether the applicant was willing and able to provide substantial and continuing assistance.

The Tribunal found that Mr Kanacki was indeed the son of the Australian relative, thus satisfying the "relative" requirement under regulation 1.15AA(1)(a). Furthermore, the Tribunal was satisfied that a valid Carer Visa Assessment Certificate, issued on 19 April 2016, met all the requirements of regulation 1.15AA(2). The certificate evidenced a medical condition causing the specified impairments, with an impairment rating of 30, and a continuing need for assistance for at least two years, thereby satisfying regulation 1.15AA(1)(b). The Tribunal concluded that the provided certificate met all the necessary criteria outlined in the regulations.

Despite finding that the applicant met the criteria for being a carer, the Tribunal noted that there was no material before it to suggest that Mr Kanacki met the prescribed criteria for any other visa subclasses he may have sought. Consequently, the Tribunal affirmed the original decision not to grant Mr Kanacki an Other Family (Residence) (Class BU) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCEWhether the applicant is a carer Clause 836.221 requires that at the time of decision, the applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer’ is defined in r.1.15AA of the Regulations which is set out in the attachment to this Decision. Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of r.1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the applicant’s mother. The Tribunal is satisfied on the evidence before it the applicant is the son and therefore a ‘close relative’ of the Australian relative who is an Australian citizen or permanent resident usually resident in Australia. Therefore, as the applicant is the son of the Australian relative, the applicant is a ‘relative’ of the resident within the meaning of r.1.03, and meets the requirements of r.1.15AA(1)(a). Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of r.1.15AA(2), states that: the Australian relative (resident) or a member of the family unit has a medical condition; that the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; that the impairment has a rating (under the impairment tables) that is specified in the certificate; and that because of the condition, the person has and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life. For a certificate to meet r.1.15AA(2) it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister (see Legislative Instrument IMMI 14/085) or issued by a specified health provider in relation to a review of such an opinion. The Tribunal is satisfied that a valid Carer Visa Assessment Certificate was issued on 19 April 2016. The Tribunal is satisfied that the certificate meets the requirements of r.1.15AA(2). The Tribunal is satisfied that according to the certificate the resident or member of the family unit of the visa applicant has a medical condition causing impairments of the person’s ability to attend to the practical aspects of daily life. The Tribunal is satisfied that the impairment has an impairment rating (of 30) specified in the certificate. The Tribunal is satisfied that because of the medical condition, the person has and will continue to have for at least 2 years, a need for direct assistance in attending to the practical aspects of daily life. The Tribunal finds that the certificate provided does meet the requirements of r.1.15AA(2). Further, the certificate addresses each of the matters mentioned in r.1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of r.1.15AA(1)(b) are met.

Decision

Reasons for decision

In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought. DECISION The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.Justin OwenSenior MemberATTACHMENTMigration Regulations 19941.15AA Carer1.15AA (1)An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if:(a)the applicant is a relative of the resident; and(b)according to a certificate that meets the requirements of subregulation (2):(i)a person (being the resident or a member of the family unit of the resident) has a medical condition; and(ii)the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and(iii)the impairment has, under the Impairment Tables (within the meaning of subsection 23(1) of the Social Security Act 1991), the rating that is specified in the certificate; and(iv)because of the medical condition, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; and(ba)the person mentioned in subparagraph (b)(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and(c)the rating mentioned in subparagraph (b)(iii) is equal to, or exceeds, the impairment rating specified in a legislative instrument made by the Minister for this paragraph; and(d)if the person to whom the certificate relates is not the resident, the resident has a permanent or long-term need for assistance in providing the direct assistance mentioned in subparagraph (b)(iv); and(e)the assistance cannot reasonably be:(i)provided by any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or(ii)obtained from welfare, hospital, nursing or community services in Australia; and(f)the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed under subparagraph (b)(iv) or paragraph (d), as the case requires.(2)A certificate meets the requirements of this subregulation if:(a)it is a certificate:(i)in relation to a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument in writing; and(ii)signed by the medical adviser who carried it out; or(b)it is a certificate issued by a health service provider specified by the Minister in an instrument in writing in relation to a review of an opinion in a certificate mentioned in paragraph (a), that was carried out by the health services provider in accordance with its procedures.(3)The Minister is to take the opinion in a certificate that meets the requirements of subregulation (2) on a matter mentioned in paragraph (1)(b) to be correct for the purposes of deciding whether an applicant satisfies a criterion that the applicant is a carer.

Ratio Decidendi

Legal Principle Established

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